Wild Birds Unlimited, Inc.v.Jeanette Davis

Trademark Trial and Appeal Board

Mar 18, 1998

No. 91096596 (T.T.A.B. Mar. 18, 1998)

Paper No. 16
CEW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MARCH 18, 1998
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_______
Trademark Trial and Appeal Board
_______
Wild Birds Unlimited, Inc.
v.
Jeanette Davis dba Birdwatchers’ Country Store
_______
Opposition No. 96596
to application Serial No. 74/333,714
filed on November 23, 1992
_______
E. Victor Indiano of Bose, McKinney & Evans for opposer
Jeanette Davis, Pro Se
_______
Before Sams, Simms and Walters, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
Wild Birds Unlimited, Inc. filed its opposition to the
application of Jeanette Davis, doing business as
Birdwatchers’ Country Store, to register the mark shown
below for “retail store services featuring: bird feeding
supplies; birdbaths; bird houses; bird watching and bird
calling equipment and field guides; books, prerecorded audio
and video recordings relating to birds; and, greeting cards,
note cards, art pieces, gifts, collectibles, jewelry,
clothing, housewares and general merchandise related to
Opposition No. 96,596
2
birds.”1 The application includes a disclaimer of
BIRDWATCHERS’ COUNTRY STORE apart from the mark as a whole.
As grounds for opposition, opposer asserts that
applicant’s mark, when applied to applicant’s goods, so
resembles opposer’s two previously registered marks, as
shown below, as to be likely to cause confusion under
Section 2(d) of the Trademark Act.
Registration No. 1,846,773 for “bird feeders and
birdhouses, in International Class 21; birdfood,
in International Class 31; and retail store
services specializing in nature related products,
in International Class 42”2:

1 Application Serial No. 74/333,714 , filed November 23, 1992, based
upon an allegation of use of the mark in commerce in connection with the
identified goods alleging first use and first use in commerce as of
March 5, 1985.
2 Registration No. 1,846,773, issued July 26, 1994, and filed as an
application on August 18, 1993. The registration includes a disclaimer
of the design of the bird apart from the mark as shown.
Opposition No. 96,596
3
Registration No. 1,311,042 for “newsletter
advertising its products and services and
containing information about the feeding and care
of birds, in International Class 16; and retail
store services specializing in the feeding and
care of birds, in International Class 42”3:
Noting the dates of use asserted in its two pleaded
registrations, opposer alleges prior use of its mark WILD
BIRDS UNLIMITED and design, in Registration No. 1,311,042;
and use of its chickadee design mark, in Registration No.
1,846,773, prior to the filing date of the application
herein. Opposer alleges that its two pleaded marks are used
in connection with goods and services “sold from
approximately 196 retail store locations throughout the
United States, and in parts of Canada”; that “applicant’s
trading area is confined to the greater Missoula, Montana,
area comprising the area within an approximately 35 mile
radius of the applicant’s retail store location”; and that
applicant is aware of opposer’s use of its pleaded marks and

3 Registration No. 1,311,042, issued December 25, 1984. Sections 8 and
15 affidavits accepted and acknowledged, respectively. The registration
includes a disclaimer of “WILD or BIRDS” and “the individual bird
designs” apart from the mark as shown.
Opposition No. 96,596
4
“has made allegations to the opposer that [such marks] are
likely to be confused with the applicant’s mark.”
On May 17, 1995, applicant filed her answer and, on May
25, 1995, opposer filed its objection to the sufficiency of
applicant’s answer on the ground that it contained
extraneous statements. The Board construed opposer’s filing
as a motion to strike, determined that applicant’s answer
was “informal,” and gave applicant time in which to file a
sufficient pleading. However, applicant failed to file her
answer. Thus, the Board issued an order to applicant to
show cause why judgment in default should not be entered
against her; and applicant responded. Also, opposer filed a
motion for default judgment which was entered in the file
subsequent to the Board’s aforementioned order. Considering
both parties’ filings, the Board denied opposer’s motion and
vacated its own notice of default, finding that applicant’s
failure to file her answer was neglectful but without any
willful conduct or bad faith intent to delay the proceeding;
and set a time for applicant’s answer to be filed.
Thereafter, applicant filed her answer.
Applicant, in her answer, admitted, inter alia, that
“applicant has made allegations to the opposer that the
[chickadee design] mark shown in [Registration No.
1,846,733] is likely to be confused with the applicant’s
mark”; and that opposer adopted, used and registered the
Opposition No. 96,596
5
[WILD BIRDS UNLIMITED and chickadees design] mark in
Registration No. 1,311,042 prior to applicant’s adoption and
use of its mark. Applicant otherwise denied the salient
allegations of the likelihood of confusion claim.
The Record
The record consists of the pleadings and the file of
the involved application. Neither opposer nor applicant
took any testimony or filed any evidence during their
respective testimony periods. Only opposer filed a brief on
the case. With its brief, opposer filed a notice of
reliance on evidence specified therein. However, Rule
2.122(e) of the Trademark Rules of Practice, 37 CFR
2.122(e), mandates that the notice of reliance shall be
filed during the testimony period of the party filing the
notice. As such, opposer’s notice of reliance and the
evidence submitted therewith are not timely filed and have
not been considered herein.4
Analysis
In view of the lack of testimony or other evidence in
the record, the determination in this case must be based
entirely on the sufficiency of opposer’s pleading and on

4 Further, we note that opposer’s exhibits A and B to the notice of
reliance would be of no persuasive value in any event as they are
excerpts, from a commercial database, of information pertaining to
opposer’s pleaded registrations. As specified in Trademark Rule
2.122(d), 37 CFR 2.122(d)(2), opposer’s pleaded registrations will be
received into evidence through the filing of a notice of reliance during
opposer’s testimony period only by way of copies prepared and issued by
the PTO showing current status of and title to the registrations.
Opposition No. 96,596
6
applicant’s admissions. We address the issues of priority
and likelihood of confusion with respect to each of
opposer’s pleaded marks separately herein.
Registration No. 1,846,773 (chickadee design)
Opposer has not established in this record either prior
use of the mark which is the subject of the pleaded
Registration No. 1,846,773 or the registration thereof.
Thus, the opposition must fail with respect to this pleaded
mark.
Registration No. 1,311,042 (WILD BIRDS UNLIMITED and
chickadees design)
In view of applicant’s admissions of opposer’s prior
adoption, use and registration of the WILD BIRDS UNLIMITED
and design mark, we find that there is no issue with respect
to opposer’s priority for this pleaded mark.
Our determination of likelihood of confusion under
Section 2(d) must be based on an analysis of all of the
probative facts in evidence that are relevant to the factors
bearing on the likelihood of confusion issue. In re E.I.
duPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). Two key considerations in this case are the
similarities between the goods and the similarities between
the marks. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). This is
especially true in cases where, as here, there is little

Opposition No. 96,596
7
evidence bearing on the other factors enumerated in the
duPont case.
With respect to the goods and services of the parties,
we observe that the parties’ retail store services are
essentially identical. Nor do we think there is any
question that opposer’s identified newsletter relating to
birding information, products and services is closely
related to the identified retail store services. Thus, we
conclude that the goods and services of the parties are
identical and closely related.
Both identifications of goods and services are broadly
worded. Therefore, we must presume that the goods and
services of applicant and opposer are sold in all of the
normal channels of trade to all of the normal purchasers for
goods of the type identified. See Canadian Imperial Bank v.
Wells Fargo, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
That is, we must presume that the goods and services of
applicant and opposer are sold through the same channels of
trade to the same classes of purchasers.
Turning to the marks, comparing the marks in their
entireties, we find that there is no similarity in
appearance, sound or commercial impression between either
the word or design portions of the parties’ marks.
Regarding the designs, applicant’s design is a single
chickadee, whereas opposer’s design is an oval reminiscent
Opposition No. 96,596
8
of the sun or a full moon, with the branches of a tree in
front of the oval. Among the branches are several small
birds. We find that when opposer’s and applicant’s marks
are considered in their entireties, they engender distinctly
different overall commercial impressions.
Therefore, we conclude that in view of the significant
differences in the commercial impressions of opposer’s mark
in Registration No. 1,311,042, WILD BIRDS UNLIMITED and
design, and applicant’s mark, BIRDWATCHERS’ COUNTRY STORE
and design, regardless of the identity and related nature of
the parties’ goods and services, there is no likelihood of
confusion as to the source or sponsorship of such goods and
services.
Decision: The opposition is dismissed.
J. D. Sams
R. L. Simms
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board